Sunday, August 15, 2004

The Treaty, the Court and the Constitution

There have been some interesting posts on the above themes from antipodean journal, No Right Turn and Just Left. FWIW here are some of my own thoughts on he subject.

There are three separate political threads developing at very different rates but all running into the same tapestry and in danger of getting knotted.

Firstly there is the issue of republicanism. Few New Zealander's feel this to be the burning "affair du jour" but most of us acknowledge that there is something vaguely anachronistic about owing allegiance (however symbolic) to a foreign monarch. We also have to recognize that republicans are a majority among the young and "demographic evolution" will eventually make them a clear majority amongst all New Zealanders. Besides as long as we use someone else's monarchy the decision may be taken out of our hands (as could easily have happened with the Privy Council). But there is no particular urgency. Most Republicans are probably willing to defer any decision to (eg) the next succession.

Then we have the issue of the electoral system and separation of powers. The old FPP electoral system (largely) guaranteed a majority government which in our "unary" system can exercise "unbridled power". In fact the NZ version of the Westminster System is not unary - we do have a separation between executive and legislature but a separation that is vulnerable to party manipulation. With MMP we have an opportunity to make that separation stronger and to make minority governments (what's wrong with a government that can't get everything it wants) the norm. The challenge is to define the proper role of the two branches of government and clarify/fine-tune the relationship between them to ensure that minority governments can govern effectively while retaining legislative and ultimate authority with parliament. Undue speed is the last thing we need, here. We are progressing to a system that can give us a genuine democracy but the former and wannabe power-brokers are getting reckless.

The Treaty issue is a narrower one but it has now assumed an urgency that we cannot deny. Prior to the "foreshore and seabed" issue and Don Brash's opportunistic abandonment of the previous bipartisan concensus the "Waitangi Process" was working and on track to a future where historic breaches were settled, contemporary breaches not contemplated and a broadly accepted and clearly understood concensus view of treaty principles well established in New Zealand jurisprudence. How soon has it turned to custard?

The trouble is, these threads interact. The treaty involves the vital issues of sovereignty, citizenship, indivual rights and the roles of the two races/cultures in NZ society but falls far short of a complete constitution. A republic would give us the opportunity to effect a separation of powers by a directly elected executive (ie the USA system) - if that's what we want. Some Maori believe that a republic extinguishes the Crown and is thus a threat to the Treaty. The electoral system and the roles of parliament and the executive are intimately linked to the issue of separate Maori seats (with FPP they're clearly needed, with MMP they're probably not but, OTOH do no harm).

A complete new constitution addressing all the relevant issues (and addressing them in a way we approve of) would be nice. But from whence does it derive its authority? The "unwritten conventions" of the Westminster system derive their authority from the weight of history - 700 years since Magna Carta, 300 since the Glorious Revolution and the Bill of Rights and (in New Zealand) over 100 years of Universal Suffrage. There is a clear but unwritten limit to the powers of a democratic state. If the state crosses this line it destroys its own legitimacy and stands in peril of overthrow or must defend itself by force. Oliver Cromwell, Adolf Hitler and Robert Mugabe all crossed that line and retained power by force. Richard Nixon crossed the line and fell. But in all these cases there is little dispute that or where the line was crossed.

The executive branch of the government may not unilaterally repudiate the checks and balances placed on it by the legislative or judicial branches, the state may not interfere in the fair running of elections, use its powers to abrogate the rule of law, grant immunity to persons clandestinely committing crimes on its behalf or maintain a private army to harrass or intimidate its opponents. These acts all strike at a government's claim to "represent the people" and so destroy the basis of its authority. That line exists independently of any written constitution - there is after all no provision of the US constitution that expressly prohibits the president authorising covert operations against his electoral opponents, or using executive pardons to protect the perpetrators when they get caught. Yet we all know that "He can't do that". The USA constitution provided a specific mechanism for calling Nixon to account - but that depended on non-partisan action by congress. (I'm not sure I'd count on the present congress to impeach Bush if he had committed Nixon's crimes.) Under the Westminster system a simple no confidence vote brings an erring government down.

Countries with written constitutions may employ a complex web of checks and balances and separation of powers between institutions but these safeguards are all too often corrupted or abused by gaming politicians so that they may unreasonably restrain or seek to overturn legitimate governments (Clinton, Whitlam) while proving inadequate defence against genuine evil (Adolf Hitler). What ever constitution we may have, our freedom rests ultimately on each citizen's duty of eternal vigilance. Perhaps the greatest danger of institutional safeguards is that they may persuade us to the lie that we might pass that burden on to other shoulders and thereafter rest in peace.

A written constitution allows more specific restrictions on the powers of government but it can do so with no greater authority than that of the act whch created it. The passage of years and accumulation of precedent may strengthen an act (including an act creating a constitution) in law and reduce the likelihood that it will be lightly repealed but, ultimately, a future parliament has the power to unmake any law made by the present parliament. We are no victorious revolutionary army watching the surviving redcoats sail back home (or listening to the tumbrils bearing the aristocrats to the guillotine), we are an established nation with a legal heritage to preserve and the only conceivable way for us to create or modify our constitution is through an act of parliament. Such a "constitution act" should rest securely on a broad concensus or it is unlikely to survive long enough to acquire the gravitas of maturity.

Rohan is concerned about the fact that we have no constitution that can limit the power of parliament but it is very doubtful whether this is possible. A "constitution act" may "entrench" itself (in whole or part) by specifying that it can only be amended by a 75% majority but the legal validity of such clauses is highly dubious. Better to concentrate on ensuring Parliament is broadly representative of a well-informed public and is not captured by the executive or any other narrow-interest group. The "Unbridled Power" Geoffrey Palmer and others warn of refers to excessive power vested in an executive which controls a clear majority in parliament through a block-voting government caucus, which is itself dominated by a block-voting cabinet that is hand-picked by the Prime Minister. An MMP parliament will (usually) exhibit a reasonable dispersal of power. We could encourage this by (eg) -

(1) limiting the size of the cabinet (Microsoft board has 10 directors );
(2) abolishing the threshold for party seats ( a party getting less than 0.4% would still round down to 0 seats);
(3) modifying the doctrine of collective cabinet responsibility so that it does not restrict parliamentary advocacy or voting on legislation by individual ministers;
(4) fixed electoral term. Parliament votes in government and can remove government only if it votes in a successor.

The treaty cannot of itself bind parliament. It has a 160 year history but as the "founding document" of NZ, not as a constitution or even as a legally binding contract. Indeed it was consistently ignored over most of that history. The founding document of the USA is the Declaration of Independence. It is no less revered than our own Treaty but it would be absurd to treat it as law. True, the "inalienable right to life" would forbid the death penalty but what punishment could be given to a criminal without infringing the equally inalienable rights to liberty, or the pursuit of happiness? And what about those words "among which" - what other inalienable rights do we have? Or should the court simply make its own judgement as to which truths are "self-evident"? The treaty is equally unsuitable as a constitutional / legal document not because of the "motherhood" principles it states but because of the practical details on which it is silent.

NRT quotes a draft provision that would have enacted the treaty as part of the Bill of Rights. I don't believe this would have been a good idea. IMHO the government of the day "passed the buck" by leaving it to the courts to determine what the "principles of the treaty" were. To have invited them to interpret the "spirit and true intent" of the entire treaty from the plain text of the two (English and Maori) versions as the basis of an entrenched bill of rights would have been a "hospital pass". It's asking a great deal to consider such a provision non-controversial and to entrench controversial materials is to invite legal challenge to entrenchment itself. This is particularly foolish with "minority issues" since entrenchment may be particularly ineffective in such issues. The present parliament, for instance would divide (on strict party lines) 101:19 on a simple question of whether to "confiscate" Maori rights to ownership of the Foreshore and Seabed. (Labour(51), Progressive(2), NZ First(13) for the bill, UF(8) were for a slightly different version and National(27) wanted outright confiscation without any of the mitigating measures in the bill). Entrenchment simply won't work against this sort of majority.

We are left faced with the harder task of defining a new set of "Treaty Principles" which are clearly stated in proper legal form, capture the "spirit and true intent" of the Treaty and have the support of a broad concensus among and between Maori and Pakeha. The enduring principles so agreed may then be enacted as all or part of a new (entrenched) bill of rights. Non-enduring matters (such as redress of historical breaches) may be addressed in separate legislation. Other constitutional matters (electoral system, republic, etc) can be safely left to other legislation (and times) as our overall constitution remains firmly grounded in the jurisprudence and history of the Westminster tradition.

I believe (or at any rate advance the narrative that) the original treaty was signed in a spirit of trust, mutual respect and goodwill and a common vision of a shared future. Today the trust is gone but the shared vision remains and the respect and goodwill may yet be salvaged. The concensus we build can no longer rest on the luxury of trust but to build an understanding between people of goodwill in the absence of trust is the thing the law does best.


Blogger Jordan said...

A long post to digest. I think we should have a written constitution; and the legitimacy on which it would stand or fall is the voice and vote of the people. In a democratic society the people are sovereign. They give, and they take away.

So you'd have a constitutional convention which came up with a document, and it would be voted on. It would be higher law; Parliament would operate within its constraints and the highest court would interpret it. It is possible to come up with a viable model here - we wouldn't even need to become a republic to do it, though that is the next obvious step.

The Constitution would contain procedures for amendment, of course.

I think it is something worth moving on. A decent debate could bed down a new settlement which can take us forward on the dream of a united nation.

18 August 2004 at 11:32 AM  
Blogger Greyshade said...

i'm not opposed to a written constitution but, however we go about it (short of a revolution) its legal status will be an act of parliament and any special entrenchment provisions will have only moral force. The only way we (the people) can indeed have any voice in our constitution is via a written document (or documents) so enacted. The (entirely pragmatic) point is that it won't stick unless it is founded on a broad concensus and it might be easier to build that concensus if we don't try to do everything in one document.
I agree that a referendum should be part of the process but that is the endpoint of the concensus-building process not the beginning. A narrow majority (or even a large majority where Pakeha numbers outweighed the Maori view) would not be enough for a durable settlement.

18 August 2004 at 7:01 PM  
Blogger Greyshade said...

Jordan - Re republic issue. It's easy to do this later if we plan to retain a ceremonial head of state (President) with a similar role to the current Governor General. We can even "pre-enact" the republic by modifying or writing a separate NZ succession so that parliament gained the right to confirm the succession of any new monarch independently of the UK with the alternative of declaring a republic. It's less simple if we want an executive president (as in USA or France). I'd personally prefer the former option (if only on the KISS principle) but I don't know how other peoplpe feel about this.

18 August 2004 at 7:14 PM  
Blogger Lewis said...

Very good Greyshade.

As a republican, I will like to concur that the move to a republic would probably rest on more solid foundations of constitutional reform than what we have at the moment. One of the prime arguments against a republic, the so-called 'minimalist' approach, is that a new head of state with the powers of the Monarch would have immense power to cause mayhem. This would be a bad thing.


23 August 2004 at 11:22 PM  
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